Sec. 211.033.  ADMINISTRATIVE PENALTY.  (a)  The commission may impose an administrative penalty against a person who:
(1)  violates this chapter or a rule adopted or order or permit issued under this chapter;
(2)  intentionally or knowingly destroys or damages or attempts to destroy or damage a hazardous liquid salt dome storage facility;  or
(3)  intentionally or knowingly disables a safety device in a hazardous liquid salt dome storage facility, except to facilitate a repair;  maintain, repair, or test the device;  or conduct an activity reasonably necessary for the safe operation of the facility.
(b)  The penalty may be in an amount not to exceed $25,000. Each day a violation occurs or continues constitutes a separate violation for the purpose of this section.
(c)  In determining the amount of the penalty, the commission shall consider:
(1)  the seriousness of the violation, including the nature, circumstances, extent, and gravity of any prohibited acts, and the hazard or potential hazard created to the health, safety, or welfare of the public;
(2)  the economic harm to property or the environment caused by the violation;
(3)  the history of previous violations;
(4)  the amount necessary to deter future violations;
(5)  efforts to correct the violation;  and
(6)  any other matter that justice may require.
(d)  A civil penalty may be assessed only after the person charged under this section has been given an opportunity for a public hearing.
(e)  If a public hearing has been held, the commission shall make findings of fact and issue a written decision as to the occurrence of the violation and the amount of the penalty that is warranted, incorporating, when appropriate, an order requiring that the penalty be paid.
(f)  If appropriate, the commission shall consolidate the hearings with other proceedings.
(g)  If a person charged under this section fails to take advantage of the opportunity for a public hearing, a civil penalty may be assessed by the commission after it has determined that a violation occurred and the amount of the penalty that is warranted.
(h)  The commission shall then issue an order requiring the penalty to be paid.
(i)  The notice of the commission's order given to the person under Chapter 2001, Government Code must include a statement of the right of the person to judicial review of the order.
(j)  Not later than the 30th day after the date the commission's order is final as provided by Subchapter F, Chapter 2001, Government Code, the person shall:
(1)  pay the amount of the penalty;
(2)  pay the amount of the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty;  or
(3)  without paying the amount of the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.
(k)  Within the 30-day period, a person who acts under Subsection (j)(3) of this section may:
(1)  stay enforcement of the penalty by:
(A)  paying the amount of the penalty to the court for placement in an escrow account;  or
(B)  giving to the court a supersedeas bond approved by the court for the amount of the penalty and that is effective until all judicial review of the board's order is final;  or
(2)  request the court to stay enforcement of the penalty by:
(A)  filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the amount of the penalty and is financially unable to give the supersedeas bond;  and
(B)  giving a copy of the affidavit to the executive director by certified mail.
(l)  If the commission receives a copy of an affidavit under Subsection (k)(2) of this section, the commission may file with the court, within five days after the date the copy is received, a contest to the affidavit.  The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true.  The person who files an affidavit has the burden of proving that the person is financially unable to pay the amount of the penalty and to give a supersedeas bond.
(m)  If the person does not pay the amount of the penalty and the enforcement of the penalty is not stayed, the commission may refer the matter to the attorney general for collection of the amount of the penalty.
(n)  Judicial review of the order of the commission:
(1)  is instituted by filing a petition as provided by Subchapter G, Chapter 2001, Government Code;  and
(2)  is under the substantial evidence rule.
(o)  If the court sustains the occurrence of the violation, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced amount of the penalty.  If the court does not sustain the occurrence of the violation, the court shall order that no penalty is owed.
(p)  When the judgment of the court becomes final, the court shall proceed under this subsection.  If the person paid the amount of the penalty and if that amount is reduced or is not upheld by the court, the court shall order that the appropriate amount plus accrued interest be remitted to the person.  The rate of the interest is the rate charged on loans to depository institutions by the New York Federal Reserve Bank, and the interest shall be paid for the period beginning on the date the penalty was paid and ending on the date the penalty is remitted.  If the person gave a supersedeas bond and if the amount of the penalty is not upheld by the court, the court shall order the release of the bond.  If the person gave a supersedeas bond and if the amount of the penalty is reduced, the court shall order the release of the bond after the person pays the amount.
(q)  A penalty collected under this section shall be remitted to the comptroller for the deposit to the credit of the oil-field cleanup fund.
(r)  All proceedings under this section are subject to Chapter 2001, Government Code.
Added by Acts 1993, 73rd Leg., ch. 949, Sec. 1, eff. Jan. 1, 1994.  Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49), (53), (59), eff. Sept. 1, 1995.